Clients often ask about the differences between the estate administration process in New York and Florida. The most significant difference is that once a person is appointed Executor or Administrator of an Estate, the process is essentially over. In Florida, it is ongoing and it is necessary to take several steps in order to close the estate and have the Executor or Administrator (referred to in Florida as the Personal Representative) discharged from liability through the courts.
If the decedent died with a will, the process is referred to as probate and it is a bit simpler. One must file the original will and death certificate with the Courts, along with other documents required by the court. That is true in both New York and Florida. While there is a proceeding to begin a probate when one has only a photocopy of the will, it is an especially difficult one to initiate and complete. Generally, if the will was properly prepared and witnessed, and the witnesses signed an affidavit about the will execution (which affidavit was notarized), then the process is much more straightforward. Where there is no witness affidavit, the witnesses must be located and encouraged to cooperate. It is not always easy to do this.
New York and Florida have different requirements for execution of a will. While a will prepared in accordance with the laws of Florida, when someone was a resident of Florida, is valid in New York, and vice versa, there may be some extra steps which need to be followed. That does not mean that if one changes their residency, they must re-do his/her will. There just may need to be some additional documentation when probate occurs.
If one dies without a will, the legal process is referred to an administration proceeding. In general, the process is not much more difficult, except that the court will likely require the Administrator or Personal Representative to post a bond as a condition of being appointed.
Complications arise when one is a resident of one state and owns real property in another. In that case, an ancillary proceeding must be commenced in the other state, after the initial proceeding in the resident’s state is completed. Needless to say, it is a long process. It is certainly a good idea, if one owns property in a state where one does not reside, to create a revocable living trust and transfer the property into the trust. A second proceeding will thus be avoided.
One additional issue arises if one commences a proceeding in Florida. Florida requires a resident agent to be appointed if the Personal Representative does not reside in the county where the proceeding is commenced. Anyone who resides in that county can qualify as an agent, if they are willing to do so. Trying to find someone who is amenable to this can be challenging, unless one is willing to incur additional expense. Also, if the person nominated to be the estate representative is not a resident of Florida and not a blood relative, that person will be disqualified, which can also cause problems.